S.13B HMA | 6-Month Cooling Off Period Not Mandatory: Gujarat High Court Quashes Order Rejecting Plea For Divorce By Mutual Consent
The Gujarat High Court has quashed a Family Court order which had rejected a couple's plea for divorce by mutual consent on the ground that six month cooling off period had to be followed, observing that parties had been residing separately for over a year and were settled in different countries. It thus held that the prescription of observing six month cooling of period was not mandatory and...
The Gujarat High Court has quashed a Family Court order which had rejected a couple's plea for divorce by mutual consent on the ground that six month cooling off period had to be followed, observing that parties had been residing separately for over a year and were settled in different countries.
It thus held that the prescription of observing six month cooling of period was not mandatory and not granting divorce to the couple who had no chance of a reunion would only prolong their agony.
The couple had filed an appeal to quash the family court order which had rejected the couple's plea seeking divorce by mutual consent observing the six month cooling off period under Section 13B Hindu Marriage Act is not 'an empty formality but a meaningful opportunity for reconciliation'. They couple had thus sought a direction to the Family Court to decide their divorce application afresh.
The Division Bench of Justice Sangeeta K. Vishen and Nisha M. Thakore noted that the period of six months under Section 13B (Divorce by mutual consent) of the Hindu Marriage Act is directory and not mandatory. It said:
“Perceptibly, there is no scope of reunion between the parties for, the parties are staying separately since more than one year as on the date of presenting the petition under section 13B of the Act of 1955. Both the parties have mutually agreed for divorce, therefore, the six months period as well as one year as provided in section 13B(1) is almost over. Considering the stand taken by the respective parties, reunion is not possible. Not accepting the request of the parties, in the opinion of this Court, will only prolong their agony. Both the parties, are young and are desirous of pursuing their careers, as per their own wish. In the case on hand, the parties have fairly conceded before this Court that application seeking waiver was not filed, however, it is agreed that it shall be filed within a period of two weeks from today. Hence, in the interest of justice, it would be appropriate to allow an opportunity to both the parties, to file an application before the Court below as enumerated under section 13B of the Act of 1955 and let the Court below decide it in accordance with law.”
The counsels for both husband and wife contended that they were married on December 9, 2023 and have been residing separately since January 17, 2024. They further submitted that the husband has moved to UK for higher studies and proposes to settle there while the wife who is settled in Ahmedabad wishes to pursue her career in India, making the reunion of the couple impossible.
Further referring to the examination-in-chief affidavits filed by the couple, the counsel stated the couple's mutual consent for divorce was taken voluntarily, without any force or coercion.
The counsels further submitted the application for divorce by mutual consent was moved on April 1, 2025, after more than a year of the separation and that the Family Court rejected their plea on August 8, 2025 as premature.
The Court after considering the facts, documents on record and the arguments of the counsels observed the couple have been living separately since January 2024, and desired to pursue their careers in different countries and due to this they filed a divorce petition by mutual consent under Section 13B of the Hindu Marriage Act, 1955.
The Court further noted the second motion was moved on July, 2025 while the period of six months was to expire on October, 2025. Referring the provisions of section 13B of the Act of 1955 and the judgement by the Apex Court in the case of Amardeep Singh vs. Harveen Kaur, it observed the Act permits dissolution of marriage by mutual consent where the parties have lived separately for one year or more, are unable to live together, and have mutually agreed to divorce, a six months cooling-off period under Section 13B(2) may be waived where a case is made out, and the parties may seek such waiver by filing an application, one week after the first motion, stating reasons for it.
The Court then allowed the appeal directing the Family Court to decide the couple's application afresh within six months.
Case Title: X vs NA
Case Number: First Appeal No. 4404 of 2025